Infraworks Services Pty Ltd T/A Infraworks

[2016] FWCA 2674

[2016] FWCA 2674

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185—Enterprise agreement

Infraworks Services Pty Ltd T/A Infraworks
(AG2016/812)

INFRAWORKS SERVICES PTY LTD RAIL SAFE WORKING PERSONNEL NEW SOUTH WALES ENTERPRISE AGREEMENT 2016

Rail industry
DEPUTY PRESIDENT SAMS	SYDNEY, 2 MAY 2016

Application for approval of the Infraworks Services Pty Ltd Rail Safe Working Personnel New South Wales Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Infraworks Services Pty Ltd T/A Infraworks (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Infraworks Services Pty Ltd Rail Safe Working Personnel New South Wales Enterprise Agreement 2016 (the ‘Agreement’). The Agreement was negotiated with the Australian Rail, Tram and Bus Industry Union (the 'Union') and Mr H Reiter, a nominated Employee Bargaining Representative (EBR). The Agreement covers 10 employees of the applicant who are engaged as worksite protection officers in New South Wales.

[2] The employees were last notified of their representational rights on 27 June 2014, and voting for the Agreement's approval took place on 4 April 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 6 of the 9 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 6 April 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer's Declaration in support of the application (Form F17) Mr M Olsen, Chief Executive Officer, identified the Rail Industry Award 2010 [MA000015] as the relevant reference instrument for the purposes of the Better Off Overall Test (the 'BOOT'). Mr Olsen said that the Agreement provides for a number of conditions that are more beneficial than the terms of the Award and that there are no less beneficial terms. The Agreement provides for higher rates of pay, higher shift penalties and more generous allowances. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 37 and 12 respectively, and a disputes resolution procedure at clause 36 provides for settling disputes by the Commission.

[4] On 14 April 2016, the Union filed a Declaration in relation to the application (Form 18), in which it objected to the approval of the Agreement and indicated that it did not wish to be covered by it. The Union raised concerns that the Agreement, if approved, will replace another enterprise agreement; namely, Infraworks Services and Rail Tram and Bus Union NSW Agreement 2010 (the ‘2010 Agreement’). If this is the case, the employees covered by the 2010 Agreement were not given the opportunity to vote on the Agreement and therefore the voting process was flawed. The Union further said that although it has been informed by the applicant that the Agreement only applies to employees of InfraWorks Services Pty Ltd, and does not affect the employees covered by the 2010 Agreement, the applicant failed to produce any documentation to support this claim.

[5] At a hearing of the application on 15 April 2016, Mr S Dixon appeared for the applicant, Ms L Bennett appeared for the Union and Mr Reiter appeared in his capacity as EBR. Mr Dixon outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and accordingly the Agreement should be approved by the Commission. The matter was adjourned to allow the applicant to seek further information to address the Union’s concerns.

[6] At a further hearing on 27 April 2016, Mr Dixon confirmed that the Agreement only covers employees of InfraWorks Services Pty Ltd and does not apply to employees covered by the 2010 Agreement. He relied on an undertaking given by the applicant, in transcript, in a matter before Cargill C in AG2013/2262 on 20 August 2013. On that basis, the Union withdrew its formal objection as to coverage, but maintained its opposition to the Agreement, based on a policy consideration that it could not support an agreement which reduced wages. Nevertheless, Ms Bennett understood that this was not the relevant test for the Commission’s approval process.

[7] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Infraworks Services Pty Ltd Rail Safe Working Personnel New South Wales Enterprise Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 4 May 2016 and have a nominal expiry date of 31 January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, AE418740  PR579669>